The law authorizing religious instruction for pupils of the public schools one hour a week during school hours outside the school buildings was declared constitutional by the Appellate Division. Third Department, in an opinion written by Justice Rowland L. Davis.

The decision was in the test case brought by Joseph Lewis, President of the Free Thinkers’ Society, against Dr. Frank P. Graves, State Commissioner of Education, to compel him by mandamus to order discontinued the plan used in White Plains as well as in the 130 cities and villages of the State where it was being practiced.

The appeal was from an order of Justice Ellis J. Staley, who denied the application for the writ made at the Albany special term several months ago.

The attack on the law was led by Arthur Garfield Hays and John C. Mahon, of New York City, counsel for the Free Thinkers’ Society, on the principal grounds that the practice violated one of the fundamental provisions of the Constitution, declaring that the Church and State shall remain separate, and that it was also in conflict with the compulsory school attendance law, which the Commissioner of Education is required to enforce.

Ernest E. Cole, counsel for Dr. Graves, argued that not to permit the absence of children from regular school classes to attend their church schools would be an interference with religious liberty and that no pupil was required to attend the church classes without the consent of the parents.

John R. Bushong filed a brief for the General Committee on week-day religious instruction of White Plains, which declared that to hold the law unconstitutional “would be a direct blow to the training of American youth, contrary to fundamental public policy, and would amount to moral anarchy.”

It is expected that an early appeal will be taken to the Court of Appeals and after that to the United States Supreme Court.